This case pitted the property rights of two U.S. citizens who had paid good money against a squatter with no title from anyone. Time and again Marshall had acted to protect private property rights. The claim arose out of the actions of a foreign government, and Marshall had previously held that U.S. courts should defer to foreign law in foreign territory. Marshall’s legal career defending the rights of British creditors and landholders under the Treaty of Paris was premised on the idea that treaties trumped the narrow prejudices of domestic courts. And the Marshall Court had reaffirmed the supremacy of treaties in the Martin case thirteen years earlier. For all these reasons, Webster anticipated that the Court would hold in favor of his clients.
On March 9, 1829, Chief Justice Marshall issued the court’s unanimous opinion in Foster & Elam v. Neilson. Despite the fact that both France and Spain agreed that the Floridas were not included in the Louisiana Purchase, Marshall found that a U.S. court should not be swayed by the intentions of foreign parties in a dispute over an international boundary: “In questions of this character, political considerations have too much influence over the conduct of nations, to permit their declarations to decide the course of an independent government in a matter vitally interesting to itself.”27 Instead, he averred that “[i]n a controversy between two nations concerning the national boundary, it is scarcely possible that the courts of either should refuse to abide by the measures adopted by its own government.”28
Marshall was not entirely convinced by the U.S. government’s position, but in the absence of any international tribunal to decide the boundaries of the territory, “the right remains with the strongest.” He felt that courts were not competent to judge this question and should defer to Congress.29
This was a classic illustration of how Marshall viewed international law through the lens of the U.S. Constitution. The court faced a dilemma—whether to defer to the consistent position of a foreign sovereign or whether to side with the somewhat less persuasive claims of the U.S. government. Rather than base his opinion on the facts before him, he deferred to Congress, because courts should not interfere with foreign relations. Congress had enacted a series of measures, including the Mobile Act of 1804, and the Court was not free to adopt an opposing view.30
But in the eighth article of the Transcontinental Treaty, the United States had agreed that Spanish land grants in the Floridas shall be “ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid” under Spanish law. Did the 1819 treaty trump the earlier Mobile Act of 1804?31 The Constitution provided that treaties, like federal statutes, were the law of the land.32 Nevertheless, Marshall asserted that some treaties were not intended to have an effect on domestic law until Congress passed implementing legislation.33 Marshall drew a distinction between treaties that had an immediate effect on domestic law and treaties that required subsequent legislation. There was no such distinction in contemporary international law; Marshall invented it. The question then became whether the 1819 treaty was “self-executing” or whether it required implementing legislation.
Marshall interpreted the eighth article of the Transcontinental Treaty to mean that the parties anticipated there would be some additional action by Congress before the land grants would take effect domestically. Since Congress had not acted to ratify and confirm the land grants, Foster and Elam’s title should not be recognized in a court.34
No court in the United States had ever held that a treaty had no effect on domestic law. Marshall had invented a new distinction between what has become known as “self-executing” and “non-self-executing” treaties. While maintaining the appearance of deferring to Congress, Marshall left it up to the courts to decide whether to give treaties effect in domestic law. Once again Marshall had expanded the Court’s power while appearing to defer to Congress. Foster & Elam was a breathtaking example of Marshall’s capacity for invention.
Why did Marshall create a doctrine that would undermine the supremacy of at least some treaties? Marshall did not have to reach the question whether the Transcontinental Treaty was self-executing. He could have decided either that Spain had ceded the territory to France before the purchase of the property, or he could have held that Congress had superseded the treaty with subsequent legislation barring such land claims. Instead, Marshall now raised a fundamental question about the supremacy of treaties under U.S. law.
Marshall later acknowledged that he had misread the treaty. Just three years after deciding Foster & Elam, he reversed his own interpretation of the eighth article of the 1819 treaty and held that the provision was, in fact, self-executing in a case brought by Juan Percheman to enforce his title to property granted by Spain.35 In U.S. v. Percheman, Marshall held that international law requires that once territory is transferred to a new sovereign, private rights are preserved. The law of nations “would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged if private property should be generally confiscated and private rights annulled.” After a change in sovereignty, people’s “relation to their ancient sovereign is dissolved; but their relations to each other and their rights of property, remain undisturbed.”36
Marshall could not reconcile the holding in Foster & Elam with the Percheman decision. Instead, he blamed the inconsistency on the fact that in Foster & Elam, the court relied on a mistranslation of the eighth article of the Transcontinental Treaty. Now the court possessed an official translation of the eighth article, which provided that land grants “shall remain ratified and confirmed to the person in possession of them” rather than “shall be ratified and confirmed.” Marshall thought that the new translation sounded less like the parties intended for Congress to adopt implementing legislation. Thus Marshall concluded that the eighth article was, in fact, self-executing and no further congressional action was needed.37
Foster & Elam is too important to dismiss as simply a case of mistaken translation. It remains a foundational case for the proposition that not all treaties have a direct effect on domestic U.S. law. Foster & Elam was probably not a mistake at all. Marshall knew exactly what he was doing. He was trying to avoid another collision with the strident Jacksonians not only on the sensitive question of whether the United States had purchased Florida from France—or seized Florida from Spain.
Marshall was anxiously looking over the darkening horizon at another approaching storm that threatened the judiciary and the Union: the cataclysmic confrontation over the sovereignty of the Indian tribes and the enforcement of Indian treaties. President Jackson and his party were challenging the legitimacy of the various treaties with the Indian nations. Marshall imagined that by drawing a distinction between self-executing and non-self-executing treaties, he created the possibility for compromise: Leave it to the courts to prune back treaty commitments that might otherwise impede westward movement.
But as events later proved, the Jacksonians had no patience for compromise. They would not allow the Supreme Court to block their path. They were determined to seize the moment and, with it, the continent.
CHAPTER THIRTY-ONE
AN EXTRAVAGANT PRETENSE
General Andrew Jackson forged his celebrity as an Indian fighter even before the Battle of New Orleans solidified his reputation as the unbreakable Old Hickory. Jackson welcomed the War of 1812 as an opportunity to expel the Indians from the frontier and open up the West.1 He regarded Indian treaties as “an absurdity.”2 In his inaugural address, he pledged “to observe toward the Indian tribes within our limits a just and liberal policy, and to give that humane and considerate attention to their right and their wants.”3 But Jackson had no intention of honoring such commitments.
Jacksonian Democrats, especially in the South and the West, believed it was their destiny to expand “freedom” westward. They saw no contradiction between their imperial ambition to conquer the territory of others and the country’s commi
tment to human liberty. The presence of Indians along the frontier was an obstacle to progress. Alabama, Georgia, and Mississippi passed laws to abrogate the independence of the tribal nations. They offered the Indians a stark choice—submit to state authority or move. Jacksonians argued that “uncivilized” tribes would be safer far removed from white settlers.4
As often happens when a nationalist leader is elected to office by vilifying other ethnic groups, a wave of racism swept across the country. Racial animosity turns especially ugly when there are economic interests at stake, and that is what happened in 1828 when gold was discovered on Indian land in Georgia. Jackson asked Congress to designate a territory west of the Mississippi for the Indians to occupy and appropriate funds for Indian removal. President Jackson offered the Cherokee and their Creek cousins a “choice”: move farther west voluntarily or the federal government would move them.5 The aptly named Senator Hugh White of Tennessee proposed the Indian Removal Act to force the Indians to move west. However, northeastern liberals were generally sympathetic to the tribal nations.
The leading opponent of the Removal Act, New Jersey Senator Theodore Frelinghuysen, argued that the United States must abide by its treaties. “Do the obligations of justice change with the color of the skin?” he bluntly asked.6
Georgia Senator John Forsyth responded that Indians were a “race not admitted to be equal . . . treated somewhat like human beings, but not admitted to be freemen.” Forsyth accused northern liberals of trying to arrest the “progress” of southern states by protecting Indians.7
After months of bitter arguments in both chambers, Congress adopted the Indian Removal Act in May 1830. Ethnic cleansing was now the law of the land.
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SEVEN YEARS EARLIER, the Marshall Court had considered the Indians’ right to possess their land in Johnson v. M’Intosh. That case arose out of a dispute over title to western land. In 1763, King George III issued a proclamation reserving all the territory west of the Allegheny Mountains for the native peoples. The British were motivated more by a desire to keep the peace with the Indians than by genuine altruism. The prohibition on settlers acquiring land from the tribal nations became a source of friction between Britain and her American subjects. Virginians were especially opposed to the king’s proclamation, which became a primary reason that Virginians supported independence.
In 1773, William Murray purchased two vast tracts from the Illinois Indians for twenty-four thousand dollars on behalf of the Illinois Company, a land syndicate. Together these two tracts covered roughly twenty-three thousand square miles lying east of the Mississippi, northwest of the Ohio, and west of the Great Miami rivers in present-day Illinois. Two years later, Murray paid the Piankashaw tribe about thirty-one thousand dollars for another pair of tracts covering parts of present-day Indiana and Illinois on behalf of a related land syndicate, the Wabash Company. One of these purchases straddled the Wabash River while the other ran from the Ohio River to the White River. The shareholders in the Illinois and the Wabash companies, which later merged, included many well-connected financiers and political figures such as Lord Dunmore, the royal governor of Virginia. After independence, Virginia claimed all the western land at issue and invalidated any title to the property acquired from Indian tribes. Virginia reserved a portion of this territory as a bounty for the militiamen who served in the Revolutionary War, and the chief justice’s father was appointed to oversee the veterans’ land claims. He surveyed the territory and drew up plans to disburse two hundred acres to each enlisted man and more to officers.8
The other states envied Virginia’s western empire. They demanded that Virginia cede the territory to the Continental Congress to help finance the war debt. Maryland even refused to sign the Articles of Confederation until Virginia relinquished its western land claim. In 1781, Virginia begrudgingly agreed to surrender its claim to Congress on condition that a portion of the land would be set aside to compensate Virginia’s veterans. Congress eventually designated that portion of the territory as Kentucky, and Kentucky agreed to reserve land for the Virginia militiamen.
In 1803 and 1805, the federal government purchased the land previously sold to the Wabash and Illinois companies by the Illinois and the Piankashaw tribes. (This did not include the Kentucky territory.) Congress planned to resell the property to finance the national debt. Meanwhile, the shareholders in the Wabash Company repeatedly petitioned Congress to recognize their title to the property. The investors offered to sell their property to the federal government, but Congress refused to recognize their title to the property.9
The following year, one of the original investors in the merged Illinois-Wabash Company, Thomas Johnson, died. Johnson had served as a delegate to the Continental Congress, the governor of Maryland, and briefly as an associate justice of the U.S. Supreme Court. The executor of his estate was Robert Goodloe Harper, a former congressman and Supreme Court advocate who had defended Justice Chase from impeachment. And Harper had also invested in the Wabash Company.10 By now, the Wabash investors felt they had no recourse but to file a lawsuit to assert their property rights. Harper thought that Johnson’s estate would make an especially appealing plaintiff in federal court. Johnson, like Marshall, had been a prominent Federalist and a close associate of both Marshall’s father and George Washington. Harper could reasonably expect to find a sympathetic audience in Marshall’s court.
Harper’s biggest procedural hurdle in clearing Johnson’s title would be proving the Illinois and Wabash companies had purchased good title to their land. There was little documentation and no eyewitnesses to the transaction with the Piankashaw and Illinois tribes. To sidestep this problem, Harper needed to find a cooperative defendant who would stipulate to the fact that the investors had paid for good title. Harper found his man in William M’Intosh.
M’Intosh was a Scottish speculator who resided in Vincennes, Indiana, then the capital of the Indiana Territory. In 1818, M’Intosh had purchased about twelve thousand acres of Illinois land from the federal government. M’Intosh waged an ongoing battle against both his neighbors and the local authorities, who regarded him as a disagreeable and shady character. A federal judge once described M’Intosh as “an arrant knave, a profligate villain, a dastardly cheat, a perfidious rascal, an impertinent puppy, an absolute liar and a mean cowardly person.”11 William Henry Harrison, the territorial governor and future president, clashed repeatedly with M’Intosh and won a slander suit against him. When M’Intosh took a former slave as his common-law wife, the “good people” of Vincennes had had enough. They drove him out of town, and M’Intosh settled in a remote part of the territory seething with resentment.12
M’Intosh agreed to cooperate with Harper as a way to get even with his enemies. Harper would sue to eject M’Intosh from the property owned by the Wabash Company. Although M’Intosh was one of the largest landowners in the region, he had little to lose from the litigation. In reality, his property did not overlap with any of the property claimed by the Wabash Company.13 It appears that Harper promised M’Intosh shares in the Wabash Company as compensation. The lawsuit gave M’Intosh a chance to challenge the property rights of his former neighbors and embarrass Harrison, who had purchased millions of acres of Indian lands on behalf of the federal government.14
Johnson’s estate sued for an order to eject M’Intosh from his land, and in 1823, the case reached the Supreme Court. The issue was whether Johnson or M’Intosh had good title to the property. Harper hired Daniel Webster as his co-counsel. M’Intosh was represented by two less experienced advocates, Henry Murray and William Winder, the brigadier general whose disastrous defeat at the Battle of Bladensburg led to the burning of Washington. Both men were apparently hired by Harper.15 Since M’Intosh was colluding with Johnson’s attorneys, it hardly mattered who represented him.
On behalf of M’Intosh, Murray and Winder argued that Indians could not convey good title to the property: If th
e tribes had ever been a sovereign people, they had long ceased to be so. They were “an inferior race of people, without the privileges of citizens.” The tribes were nomadic. They merely occupied the land without owning any of it. They “never had any idea of individual property in lands.”16 In reality, these assertions grossly misrepresented the tribal nations. Not all tribes were nomadic. And the Indian nations had varied complex concepts of property rights that included both collective and personal rights.17
The attorneys for M’Intosh insisted that the source of all property rights was the “discovery” of the continent, and these rights were originally vested in the British Crown and passed through Virginia to the federal government. The defendant was asking the Supreme Court, in effect, to expropriate the entire continent from the Indians in a single blow.
From an equitable perspective, it should have been an easy win for Johnson and the Wabash investors: The Indians had occupied the continent since time immemorial, and the treaties between tribes and Europeans implicitly acknowledged the right of the Indians to possess the land. There were many instances of Americans, including George Washington and Benjamin Franklin, joining land syndicates to buy property from Indian tribes. Johnson purchased the land from the Piankashaw more than four decades before M’Intosh bought it from the federal government. Once the land was sold to Johnson, it could not be sold a second time, and the federal government could not deny the preexisting private property rights of a U.S. citizen. The Fifth Amendment to the Constitution expressly provided that the government could take private property only for public use and only if it paid fair compensation to the owner. Marshall was personally sympathetic to the Indians, and of course, he was himself a land speculator. For all these reasons, one might expect that the court would hold in favor of the estate of their former colleague, Justice Johnson.
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